Disability discrimination is the most common type of reported discrimination in employment, according the Department of Fair Employment and Housing. So, what exactly is disability discrimination in employment?

Disability discrimination is more easily understood as “health, illness, or injury” discrimination. Disability discrimination does not require that you be “disabled” in the ordinary sense of the word. You do not need to be confined to a wheelchair or blind to be “disabled”. A legal “disability” is much broader than the ordinary definition. Disabilities are a physical or mental impairment that makes the performance of a “major life activity”--including working--difficult.

As examples, low back pain, a diagnosis of cancer, Carpal Tunnel Syndrome, and depression could all be “disabilities”. Similarly, there is no requirement under California law that a disabled person be prevented from working. The disability merely needs to make performance of working difficult. There is no requirement that that a legal disability be caused by working or that it is an “industrial injury”. Thus, an injury received outside of work while playing soccer or hiking may also be a disability.

Next, disability discrimination in employment may only occur in an employer-employee relationship. This means that properly classified independent contractors may not sue for disability discrimination. Similarly, a qualified employer under the Fair Employment and Housing Act (FEHA) must have five or more employees. However, the “five or more” requirement is also construed broadly, and includes certain part-time employees. This makes California’s version of disability discrimination much broader than the protections through the Americans with Disabilities Act (the ADA).

Disability discrimination next requires that the employer “knew or thought” the employee to have a disability. Therefore, to be liable for disability discrimination the employer must know that the employee is actually disabled. However, an employer’s willful ignorance of an employee’s disability may meet this requirement under the FEHA. Nevertheless, it is important for disabled employees to inform their employers that they are actually disabled, preferably in writing.

Next, California’s public policy is to keep injured or disabled persons working if they are able to perform the “essential functions” of their job. This is even the case if keeping the injured person working is expensive, time consuming, or difficult for the employer. So, if a disabled employee could perform the essential functions of their job “with or without a reasonable accommodation” the employee may still have a case for disability discrimination.

As an example, take the imaginary case Johnny the Janitor. Johnny has chronic low back pain. Johnny is in lots of pain at work at Acme Co., where Johnny works as its only janitor. As a janitor, Johnny’s “essential job” duties include prolonged mopping and lifting 60 pound trash cans into a dumpster. Johnny cannot continue to perform his job without a workplace modification, called an “accommodation”.

However, Johnny informs his manager, in writing, that he simply needs to take periodic five-minute sitting rest breaks every two hours when his back is in extreme pain. Johnny also tells Acme Co. through its Human Resources Department that his coworker, Sally the Security Guard, will assist him in lifting the 60 pound trash cans into the dumpster. This will only take 30 seconds of Sally’s time. In other words, Johnny can perform the essential functions of his job so long as Acme Co. provides him with the requested “reasonable accommodations”.

Next, disability discrimination requires an “adverse employment action”. The most common form of adverse employment action is termination of employment. However, an adverse employment action also includes the denial of a promotion, a demotion, disciplinary write-ups, a cut in hours or pay, and other negative employment actions.

Disability discrimination next requires that the employee’s disability was a “motivating reason” for the employer’s adverse employment action. More clearly put, the termination needs to be caused, at least in-part, by the employee’s disabled status. However, this does not require the employee alleging disability discrimination to show that the employer hates, dislikes, or intentionally wants to harm disabled persons.

As an example, let’s take another look at Johnny the Janitor. Instead of providing Johnny with the “reasonable accommodations” that Johnny requested, Acme Co.’s Human Resources Department terminates Johnny. Human Resources tells Johnny, “We can’t allow you to work with a bad back.” Even though Acme Co.’s motives may be pure, their statement to Johnny is evidence that his termination was motivated by his disability (the bad back). This is all that the FEHA requires.

Johnny is now unemployed. He has suffered “special damages” caused by his termination in the form of lost wages, his 401k plan, and lost health benefits. Significantly, Johnny has also incurred “general damages” in the form of depression, stress over finances, and embarrassment. Special and general damages are both recoverable under the FEHA. By satisfying the element of “damages”, Johnny has established a great case for disability discrimination.

For any questions on disability discrimination, accommodations, or wrongful termination, please call Brian Mathias Law, serving both sides of the Monterey Bay.